Wednesday, 05/11/05

Vacancies on 6th Circuit mean slower court system in Tennessee

WASHINGTON — White House officials fuming over judges the Senate won't act on. Lawmakers taking to the floor for passionate speeches demanding votes on nominees. Court dockets filling up while seats on the bench sit empty. Partisan gridlock bringing Senate business to a virtual standstill.

And it all transpired in the last few years of the Clinton administration.

As the Senate grapples with whether to ban filibusters for judicial nominees, Republicans like Senate Majority Leader Bill Frist of Tennessee have blamed Democrats for vacant seats on federal appeals courts.

Twelve openings on circuit courts around the country have been vacant for so long that the U.S. Judicial Conference has declared them ''judicial emergencies,'' meaning the caseload threatens to overwhelm judges unless all the seats are filled. Four of those are in the U.S. 6th Circuit Court of Appeals, which hears appeals of cases from Tennessee, Kentucky, Ohio and Michigan.

But more than half of the emergency vacancies date back to before President Bush took office — illustrating how both Democrats and Republicans have sought to delay confirming judges appointed by their political rivals.

One of the seven judges Democrats have pledged to block, Michigan appeals court Judge Henry Saad, would sit on the 6th Circuit if he won confirmation. His opponents say he is so extremely conservative that he should not get a lifetime seat on the bench.

Frist indicated yesterday that if a resolution to the impasse isn't found in the next few days, he might press for a vote banning filibusters of judges next week, after the Senate finishes work on a massive highway bill.

While the parties jockey for political advantage ahead of any vote, most leaders on both sides also are trying to focus only on the parts of Senate history that fits their view of the current standoff. Even some of the urgency of the judge standoff has been hyped. If all of the blocked judges were confirmed immediately, some judicial emergencies would remain.

GOP leaders say the Democratic effort to block judges is the first time in 214 years that an organized, partisan filibuster has been used against judicial nominations.

''The goal is the restoration of 214 years of tradition,'' Frist said. ''What went on in the last Congress is really unacceptable.''

Democrats counter that Republicans kept Clinton nominees from even coming to the floor where they could be filibustered, bottling them up in committee when they didn't approve of the judges the Democratic president picked.

And they point to other filibusters, including a 1968 effort to block Supreme Court Justice Abe Fortas, appointed by Democratic President Lyndon Johnson, from becoming the chief justice.

''We on this side know the difference between opposing nominees and blocking nominees,'' Senate Democratic leader Harry Reid of Nevada said.

No matter who fired the first shot, what it means for Tennesseans is a federal court system that works slower than it's supposed to, with cases building up in the docket on appeal because there aren't enough judges.

Last year, the 6th Circuit, based in Cincinnati, got 4,693 new cases filed and decided 4,628 cases filed earlier, according to Leonard Green, the clerk of court. Cases take about 15 months to wind their way through the system. About 4,000 cases are sitting on the court's docket now.

''They're short-staffed,'' said Suzanna Sherry, a law professor at Vanderbilt University who studies constitutional law and the federal court system. ''There's a limit to the number of cases that any judge can handle. They can take up the slack to some extent, (but) that's hard to maintain.''

Civil lawsuits may be even more backed up because criminal trials take precedence on judges' calendars. The longer the four seats on the 6th Circuit stay vacant, the more work may back up. But Sherry said empty seats on the bench are only one of many factors that lead to backlogs in the courts.

''Yes, all things being equal it would be better not to have any vacancies, but it's not the only factor that affects how fast cases go through courts,'' she said.

Still, Frist and other leading Republicans cite the ''judicial emergency'' designation often in criticizing Democratic filibusters.

''We have 46 vacancies now, 16 judicial emergency vacancies, so it's time for us to move to the issue of judges,'' Frist said yesterday, including four district court emergency vacancies along with the 12 circuit court emergencies.

During the Clinton administration, though, it was Democrats calling for speedy up-or-down votes on nominees, with Republicans slowing the confirmation process through their control of the Senate Judiciary Committee. Almost daily, aides in both parties gleefully dig up quotes from the late 1990s with some of the same players on the other side of the issue.

Republicans have acknowledged Democratic complaints about Clinton's judges, agreeing to change Senate rules so nominees can't be bottled up in committee anymore if Democrats will agree not to filibuster judges. But now that Democrats are trying to stop judges, not get them confirmed, that concession hasn't helped.

Leaders on both sides are preparing their allies for a vote that could wreck the Senate's already tense partisan balance.

''I do think that we need, again, to look to the 100 United States senators and see what their will is to move forward on judges,'' Frist said.